Beyond the Hearsay: A Look at Malpractice
To say the fear of malpractice influences U.S. specialists making clinical decisions may be an understatement, but to better understand how much, several experts share what their research and personal experiences have revealed. Also, is reform warranted to curtail defensive medicine, and if so, what is the proper method?

Just the facts

While many clinicians speak about the impact of malpractice, the actual statistics have been vague. Thus, Anupam B. Jena, MD, PhD, from the department of medicine at Massachusetts General Hospital in Boston, and colleagues set out to assess the proportion of physicians who face malpractice claims per year, the size of those claims and the cumulative career malpractice risk according to specialty (N Engl J Med 2011;365:629-636).

"While it is well known that obstetricians and neurosurgeons face a higher likelihood of being sued and face higher malpractice premiums, besides those two generalizations, we really knew little about the individual specialties," says Jena, who analyzed new malpractice claims data from a large, physician-owned professional liability insurer.

Across 25 specialties, they found that 7.4 percent of physicians out of 40,916 evaluated had at least one claim per year, whereas only 1.6 percent made an indemnity payment—meaning that 78 percent did not result in payments. There was significant variation across specialties in the probability of facing a claim, ranging annually from 19.1 percent in neurosurgery, 18.9 percent in thoracic-cardiovascular surgery and approximately 8 percent in cardiology.

"While these figures may seem low, if you apply them to a lifetime in clinical practice, there is nearly a 100 percent probability that physicians in high-risk specialties will face a claim," says Jena. "It's alarming to think about. For physicians who practice over 30 years, the lifetime risk is very high and that shapes one's perception of the malpractice environment."

Specialties in which physicians were most likely to face claims were not always specialties in which indemnity claims were most prevalent, Jena et al found. Across specialties, the mean indemnity payment was $274,887, and the median was $111,749. Also, specialties that were most likely to face indemnity claims were often not those with the highest average payments. For example, the average payment for neurosurgeons ($344,811) was less than the average payment for pediatricians (the highest at $520,924), even though neurosurgeons were several times more likely to face a claim in a year. Meanwhile, thoracic-cardiovascular surgery and cardiology hovered at a close average of approximately $300,000, with cardiology slightly higher.

Interestingly, Jena and colleagues have started examining common causes of claims, and how they relate to payments. A missed aortic dissection is a frequent claim that results in payment to the patient. Also, the cardiologist who performs the second interpretation of an EKG to confirm that the initial physician's interpretation often has claims filed against him or her. "This is very interesting, because the cardiologist never even saw the patient," says Jena.

Physicians, or their facilities, can insure them against indemnity payments through malpractice coverage, but physicians cannot insure themselves against the indirect costs of litigation, Jena et al wrote. There is no evidence on the size of these indirect costs, but direct costs can be large. One study of medical malpractice suggested that nearly 40 percent of claims were not associated with medical errors. Although a low percentage of such claims led to payment of compensation (28 percent, as compared with 73 percent of claims with documented medical errors), they accounted for 16 percent of total liability costs in the system (N Engl J Med 2006;354:2024-2033).

These lawsuits also can cause stress, anxiety, reputational damage and time away from work, Jena says. In fact, Michael S. Lauer, MD, director of the division of prevention and population sciences at the National Heart, Lung and Blood Institute, was sued for malpractice for a decision he made as an attending physician at the Lahey Clinic in Burlington, Mass., in 1993. Lauer received the claim three years later, while working as a cardiologist at Cleveland Clinic, and the case "dragged on for years with lots of paperwork."

The trial did not occur until October 2001, during which time Lauer spent a "stressful time" in Massachusetts. After the trial, where he was exonerated, he wrote, "I can hardly wait to see my wife and children again and to return to the daily grind," (J Am Coll Cardiol 2002;40:563-564).

Impact on practice

Do the fears of a malpractice suit actually impact daily practice? According to one study, conducted by Lucas et al, nearly 24 percent of 598 cardiologists surveyed across the U.S. reported ordering a cardiac catheterization out of fear of malpractice (Circ Cardiovasc Qual Outcomes 2010;3:253-260).

"Our findings revealed that cardiologists are more likely to recommend a cardiac catheterization to a somewhat questionable patient to avoid a malpractice suit," says Frances Lee Lucas, PhD, from the Center for Outcomes Research and Evaluation at the Maine Medical Center in Portland, Maine.

Despite these findings, Jena suggests that the "estimated contribution of defensive medicine to overall medical costs is small," even though "physicians often voice concerns about it."

Regardless, some may argue that the practice of defensive medicine may not be a bad thing. "The fact that malpractice suits cause physicians to practice to some degree defensive medicine can be positive," says Jay D. Miller, JD, an attorney who specializes in medical malpractice law with Miller, Murtha & Psoras in Lutherville-Timonium, Md. "There are always extremes, and some physicians may order tests inappropriately due to fear of malpractice. However, a little caution is warranted."    

Miller has filed more than 300 cases on behalf of patients against Mark G. Midei, MD, an interventional cardiologist who had his medical license revoked by the Maryland State Board of Physicians in July 2011, and his facility, St. Joseph Medical Center in Townson, Md. In their decision, the board said Midei's license was pulled due to his "repeated and serious" violations of the Medical Practice Act, including "unnecessary stent insertions" and the falsification of patients' medical records. Since then, Miller has brought cases against other interventionalists in Maryland for unnecessary stenting, including Kourosh N. Mastali, MD, and John Chung-Yee Wang, MD, who were partners with Midei at MidAtlantic Cardiovascular Associates, which has since disbanded.

"Due to the cases brought against Midei and other interventional cardiologists in Maryland, hospitals in Maryland have engaged in a much more rigorous peer review process to ensure that rogue physicians can't partake in these unnecessary procedures, which is a positive effect," says Miller. "Plus, the state legislature is ensuring that this happens."   

Reform, tort or otherwise

"Malpractice reform would go a tiny way toward reducing practice variation," says Lucas. "It would solve only a small part of the problem." Jena adds that "tort reform has not had a very large effect on malpractice premiums or defensive medicine."

Some models indicate that collaboration helps. The Northern New England Cardiovascular Disease Study Group, for instance, is a long-standing collaborative where hospitals from Northern New England contribute data about cardiac treatment. "There's some fairly good evidence that you can reduce practice variation through supportive, well-intentioned peer interaction," says Lucas. "This is easier said than done, as they have to learn to trust each other before they start sharing their practices and honing in on best practices. But, this is one model for reducing practice variation."

The state of Maryland has tried placing a monetary cap on what patients can recover, which Miller says "has not done anything." The state also initiated and then rescinded mandatory arbitration.  

"One solution could be a no-fault system, which would cover a certain percentage of cases that did not involve death or paralysis, and could be compensated on a no-fault basis from a general fund," recommends Miller. "In this system, someone who suffered a perforation could go to this fund to get their medical bills covered; however, any situation where a patient's life ends unnecessarily or a patient whose life is catastrophically changed, you cannot place caps on his or her recovery." He recommends making an exception for these individuals and the families of individuals, but also creating a fund for those "genuine mistakes" with lesser injuries.

Drawing from his personal malpractice experience, Lauer presents a recommendation for better ensuring the validity of cases brought against physicians. Lauer was sued over a 41-year-old male patient who presented with complete heart block, a very rare condition for a patient of his age. As an attending physician in 1993, Lauer ordered an "extensive diagnostic work-up," mentioning sarcoidosis in his report, and after all the tests came back negative or normal, he referred the patient to an electrophysiologist, who inserted a pacemaker and assumed care of the patient.

"After that, I never saw the patient again," says Lauer. "Years later, I received a letter from an attorney informing me that the patient had died suddenly, and an autopsy found the cause was sarcoidosis. My electrophysiologist colleague and I were sued for failure to make the diagnosis of cardiac sarcoidosis."

During the trial, it was revealed that the crux of the plaintiff's case hung on one expert witness, a cardiologist, who has been involved in more than 300 medical malpractice lawsuits and claimed that "additional tests would have uncovered the condition and saved the patient's life." Lauer says that the statements were "baseless," and not rooted in evidence-based medicine. It also was revealed that the witness was paid $300 per hour, and he was "not an expert in the disease state." After nine hours of deliberations, the jury found that Lauer and his electrophysiologist colleague were not negligent, and no damages were awarded.

Due to his experience, Lauer has recommended "a voluntary system whereby expert witnesses would have the opportunity to submit their pretrial reports for peer review. Peer reviewers would be chosen by professional societies and would be compensated for their time by the involved law firms," (J Am Coll Cardiol 2002;40:563-564).

"This process replicates how scientific research is conducted," Lauer points out. "If the medical society has a critique of the opinion, it could be introduced as evidence at trial. In my case in Massachusetts, the witness simply had to prove that he was a physician, and his claims did not have to prove credibility in any other way. This recommended system would provide one additional safeguard that expert witness testimony is grounded in appropriate science."

Miller scoffs at this suggestion, pointing to the biases of professional societies against certain physicians. "It is difficult enough for lawyers to find a qualified witness, and intimidation methods of these individuals who testify on behalf of plaintiffs aren't fair," says Miller. In Maryland, an expert witness must certify in writing that 80 percent of the practice is spent seeing patients, so "he can't be a professional witness or even be a retired physician."

Whether reform is necessary seems up for debate, but the fear of malpractice lawsuits has clearly resulted in defensive medicine. In the meantime, it seems that regional initiatives and state policy may produce less varied test ordering, and physicians will continue to need to insure themselves against these suits.